Case Information
*1 The Attorney General of Texas October 17, 1986
JIM MATTOX
Attorney General
Supreme Court Building P. 0. BOX 12548 Austin, TX. 78711-2548 [51214752501] Telex 9101674-1367 Telecopier 5121475-0266 Texas Commission on Alcohol Mr. Robb Southerland Chairman Austin, Texas 78701 1705 Guadalupe and Drug Abuse Abuse, regarding certification of DWI education programs, contravenes Re: Whether a proposed rule of the Opinion No. JM-564 Texas Commission on Alcohol and Drug
state or federal anti-trust laws, 714 Jackson, Suite 700 and related questions Dallas, TX. 752024506 214l7428944 Dear Mr. Southerland: You request an Attorney General Opinion on behalf of the DWI 4824 Alberta Ave.. Suite 180 Certification CommIttee. The DWI Certification Committee consists of El Paso, TX. 79905.2793 915/x33-3464 four members, each one representing one of the following agencies:
Texas Department of Public Safety, Texas Commission on Alcohol and Drug Abuse, Texas Department of Highways and Public Transportation, - Texas, Suite 7W and Texas Adult Pwbation Commission. Its powers are described in I Aon, TX. 77002-3111 section 6d, of artjcle 4'2.12 of the Code of Criminal Procedure, which 7131223-W was enacted in 1985: 606 Broadway, Suite 312 Sec. tld.. If a person convicted of an offense Lubbock, TX. 79401-3479 under Alrticle 67011-1, Revised Statutes, is 8061747-5238 punished under Subseciion (c) of that article and is placed on probation, the court shall require, as 43M) N. Tenth, Suite B a conditl.o'n of the probation, that the defendant McAllen. TX. 78501-1885 attend arz successf iully complete before the 181st 512/682-4547 day after, the dav Drobation is eranted an educa- tibnal program jointly approved by the Texas 200 Main Plaza, Suite 400 Commissioq on Alcoholism, the Department of Public San Antonio. TX. 782052797 Safety, the Traffic Safety Section of the State 512/225-4191 Department of Highways and Public Transportation,
and the %!xas Adult Probation Commission designed to rehabrlitate persons who have driven while
An Equal OpportunityI Affirmative Action Employer intoxicatzd. The Texas Commission on Alcoholism
shall pub&h the jointly approved rules and shall monitor ;atd coordinate the educational programs. (Emphasis *added).
See Acts 1985, 69t.h Leg., ch. 427, 51, at 1538. Article 67011-1, G.C.S.. defines thbe offense of driving while intoxicated.
The members o,E the DWI Certification Committee have joint authority to approve educational programs designed to rehabilitate persons who have driven while intoxicated. The rules made by the committee in exercise of this power are published by the Texas Commission on Alcohol and Tlrug Abuse, the successor to the Texas Commission on Alcoholism. Ike Acts 1953, 53d Leg., ch. 411, at 983, .-- repealed by Acts 1985, 69th Leg., ch. 632, at 2328. See also V.T.C.S.
arts. 5561~~. 5561c-2.
you inquire about the :Legality of the following proposed rule before the coaxaittee:
153.4. Program Certification. A certificate issued under this Act expires two years from the date of issuance. A program seeking certification must comply with the provisions of this Act and with the rules, re:gulations and standards of the commission adoptt,d under this Act. Programs seeking initial certification must establish that a need exists in fhe proposed county or counties to be served and n;st provide proof of support for the program frox- the appropriate adjudicating court(s) and protztion department(s). A certi- ficate may be is&&d when the commission receives a completed prescribed application form. The certificate will '>ecome effective on the date ‘of issuance. A program shall be monitored by the commission or its designated representative prior to issuing program. certification or during the two year certificaticn period. Certified programs will be listed at; potential referral schools in the Statewide DWL Education Program Directory.
Non-certified prof,rams are not eligible to receive referrals. AppMcations for certification are available from the Commission's Statewide DWI Education Program Director. Texas Commission on Alcohol and Drug Pbuse. . . . (Emphasis added).
Your questions are as follows:
1. Will the Proposed rule violate any pro- visions of the Sherman Anti-trust Act or other anti-trust legislz.tion in Texas?
2. Does TCALJA have authority to require, in Its rules, proof of local need for a new program in each county pr,,posed to be served? If so, may the Commission designate that such documentation of need be suppllad by letters of support from referring judges l.r; the county?
We do not believe you !aave authority to require proof of local need for a new program in any county; hence, we need not consider your *3 Mr. Robb Southerland - Page 31 (JM-564)
first question on the ant,L--trust implications of the "local need" requirement.
Administrative regulations issued pursuant to an agency's rule- making power must be in hzzmony with the general objectives of the statute. Gerst v. Oak Clifc Savings and Loan Association, 432 S.W.2d 702 (Tex. 1968). The purpose of article 42.12, section 6d of the Code of Criminal Procedure is to require persons placed on probation for driving while intoxicated to complete an educational program designed to rehabilitate them. This purpose is to be implemented through the education programs approved by the four agencies enumerated in the statute. The joint rule-making power of the agencies is directed at seeing that the educaticnal programs are designed to promote rehabilitation of such persons. The committee has no authprity to base its certification of 2.n educational program on proof of a local need and local judicial support for it. It has no duty or authority to protect particular educational programs from competition or otherwise promote their economic welfare.
The provisions in section 6d on the committee's rule-making power may be contrasted with the following provisions on the Savings and Loan Commissioner's authority to approve or deny applications to incorporate under the Savings and Loan Act, article 852a. V.T.C.S.:
(a) The coam&sioner may not approve an application to incorporate unless he finds that: . .
(3) there is a public need for the proposed association, and the volume of business in the community in which the proposed association will conduct its butziness indicates a profitable operation is probable; and
(4) the operation of the proposed association will not unduly harm any existing association.
V.T.C.S. art. 852a, §2.07.
If an applicat:;on to incorporate a new associa- tion is before tt.e commissioner at the same time as an application for the establishment of an additional office by an existing association, both seeking to locate an office in the same community, and the principal office of the existing associa- tion is located in a different county than the community, the cxamissioner may give additional weight to the application having the greater degree of control vested in or held by residents of the community.
, ?
V.T.C.S. art. 852a, 12.12. The purpose of article 852a, sections 2.07(a)(3) and (4) is to prevent overzealous competition in the industry. Southwestern Savings and Loan Association of Houston v.
Falkner, 331 S.W.2d 917 (Tf:. 1960). Section 6d of article 42.12 of the Code of Criminal Procedure does not reveal any similar legislative concern for the educational programs designed to rehabilitate DWI offenders nor does it include specific provisions directed at Implementing such an intent. See also Acts 1975, 64th lag., ch. 323, 53.10, at 832 (expired provision on criteria for issuing certificate of need for health facilj.ties). We conclude that section 6d of article 42.12 of the Code oji Criminal Procedure does not authorize the Texas Commission on Alcohol. and Drug Abuse to issue rules requiring proof of local need for a new educational program to rehabilitate persons who have driven wh,t:Le intoxicated. We seed not answer your other questions.
SUMMARY The DWI Certification Committee does not have authority under article 42.12 of the Code of Criminal Procedurs, section 6d. to require proof of local need aa a criteria for approving an educational program designed to rehabilitate persons who have driven while intoxicated.
JIM MATTOX Attorney General of Texas JACK RIGRTOWKR
First Assistant Attorney Geueral
MARY KELLER
Executive Assistant Attorne:? General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General